Lawleys Transport Pty Ltd

[2015] FWCA 4637

[2015] FWCA 4637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Lawleys Transport Pty Ltd
(AG2015/3145)

LAWLEY TRANSPORT PTY LTD ENTERPRISE AGREEMENT 2015

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the Lawley Transport Pty Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lawley Transport Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lawley Transport Pty Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 104 employees who are engaged in the provision of car transport to and from school for disabled children as part of the NSW Assisted School Travel Program. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 4 May 2015 and voting for the Agreement’s approval took place between 2 and 16 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 81 of the 89 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Lawley, Director, identified the Passenger Vehicle Transportation Award 2010 [MA000063] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Lawleysaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award in that it provides for reduced minimum engagements. However, the Agreement also provides for payment to drivers for student absences up to five consecutive days in any one absenteeism period and for the provision of a fully maintained vehicle for work. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 6 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 July 2015, Mr D Houlihan of FirstIR Consultancy Pty Ltdappeared with Mr G Lawley for the applicant. Mr Houlihan outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that arrangements in the enterprise agreement for minimum engagements of three hours, rather than four per day were made in the context of New South Wales legislation requiring that no child can be transported for longer than 90 minutes either going to school or coming home. Mr Houlihan submitted, in the alternative, that if the Commission was not satisfied that the Agreement meets the BOOT, there was a public interest in the Agreement being approved pursuant to s 189 of the Act. I am satisfied that the Agreement meets the BOOT but, even if I am wrong, I am satisfied that, given the important community service the applicant is engaged in, it would not be contrary to the public interest for the employees to work under these arrangements, so as to meet the critical needs of their passengers. Accordingly, I would also approve this Agreement based on the requirements set out in s 189 of the Act; See: Jarman Ace Pty Ltd t/as Ace Buses [2014] FWCA 3338.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188 and 189 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Lawley Transport Pty Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 13 July 2015 and have a nominal expiry date of 13 July 2017.

DEPUTY PRESIDENT

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